Grace v. Perry

• Citation: 95 S.W. 875,197 Mo. 550
• Parties: GRACE v. PERRY et al.
• Decision Date: 20 June 1906
• Court: United States State Supreme Court of Missouri

95 S.W. 875

197 Mo. 550

GRACE v. PERRY et al.

Supreme Court of Missouri.

June 20, 1906.

1. WILLS — ESTATES CREATED — LIFE ESTATES.

Testator's will gave the residue of his estate equally to two minor children during their lives, with remainder to their heirs, "or his or her heirs of their body, but with full power and authority to each of my said children after their majority to dispose of the absolute estate in fee-simple title, and on the death of either the survivor to inherit; but, should both my children die without issue of their body, then and in that event my grandnephew, L., shall inherit." Held, that the intention of the testator was to devise to each of his children a life estate in the undivided one-half of the residue of his estate, with power to dispose of the fee to such half after attaining majority, and the remainder to the survivor for life with like power, contingent on the death of the other without issue, but, if both children have issue, then with remainder to such issue per stirpes; if only one of the children has issue, with remainder to such issue, but, if both of the children die without issue, then with remainder on the death of the survivor to L.

2. SAME — POWER OF DISPOSITION.

A power of disposition in fee added to a life estate is not repugnant to the life estate or to a remainder over.

[95 S.W. 876]

3. SAME — RIGHTS OF LIFE TENANT — MORTGAGES.

Where a will gave a life tenant power to dispose of the fee-simple title, he had power to mortgage it.

4. POWERS — EXECUTION — DEED.

Where a will gave a life tenant authority to dispose of "the absolute estate in fee simple," and he conveyed by deed "the absolute estate in fee simple," though there was no express reference to the power, there was sufficient indication that the deed was made in execution of the power.

5. WILLS — CONSTRUCTION — INTENT OF TESTATOR.

Under Rev. St. 1899, § 4650, providing that courts concerned in the execution of wills shall have due regard to the true intent and meaning of testator in construing a will, the meaning of testator governs technical rules of construction, if the intent is not violative of some established rule of law.

6. SAME — RELATION TO BENEFICIARIES.

In construing a will the relation of testator to the beneficiaries and the surrounding circumstances are to be considered in arriving at testator's intent.

In banc. Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Partition by Patrick F. Grace against Augusta Lucy Dougherty Perry and others. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.

McKeag & Cummings, for appellant. P. A. Griswold, Thos. P. Bashaw, Alexander Young, and Nagel & Kirby, for respondents. J. L. Minnis, amicus curiæ.

BRACE, C. J.

This is a suit for partition of a lot of ground in block 208e in the city of St. Louis, fronting 30 feet on the west line of Thirteenth street and running westwardly that width to the east line of Center street, of the undivided one-half of which the plaintiff, in his petition, claimed to be the owner as tenant in common in fee simple with the defendants. The judgment was for the defendants, and the plaintiff appeals.

Since the case has been pending in this court, the plaintiff has died, and the case has been revived in the names of Thomas M. Grace and Margaret M. Grace, executors and trustees, and William L. Grace, a trustee, under the will of the said Patrick Grace. The case-made is this:

James S. Dougherty died testate seised of the land in question, leaving a widow and two children, to wit, James S. Dougherty and Augusta Lucy Dougherty, who has since intermarried with John W. Perry. His will is as follows:

"I, James S. Dougherty, of St. Louis, Mo., being of sound and of deposing mind, do make, and publish, and declare the following as my last will and testament, to wit:

"First. I direct all my debts justly due to be paid.

"Second. I give and devise to my wife my residence and furniture for sole use and the use of my children for and during her natural life, and such other interest in my estate as the law will allow and may be allowed according to the within or attached contracts. All the residue of my estate, personal and mixed, I give and devise equally to my children, James S. Dougherty and Augusta Lucy Dougherty, during their natural lives, respectfully, with remainder to their heirs or his or her heirs of their body, but with full power and authority to each of my said children after their majority to dispose of the absolute estate in fee-simple title, and on the death of either the survivor to inherit. But, should both my children die without issue of their body, then and in that event my grandnephew, Charles F. Loker, shall inherit all my property.

"I appoint Melvin L. Gray and James R. Loker executors of this my last will.

"In testimony whereof, I have hereunto set my hand and seal this 5th day of April, 1878.

                           "James S. Dougherty.  [Seal.]
                

"Subscribed, sealed, and declared by the above-named J. S. Dougherty as and for his last will and testament in our presence and in the presence of each other, herewith subscribing our names as attesting witnesses thereto, this 5th day of April, 1878.

                                          "J. C. Page
                                          "Thomas J. Henley
                                          "Thos. P. Miller."
                

"The within or attached contracts" mentioned in the body of the will constituted an antenuptial contract whereby he charges his estate with an annuity of $800 in favor of his wife during her widowhood. On the 14th of February, 1898, the widow released to her son, James S. Dougherty, all her right, title, interest, and claim in and to the property in controversy. Afterwards, on the 5th of March, 1898, the said James S. Dougherty and wife executed a deed of trust of that date conveying "the absolute estate in fee-simple title in and to the undivided half" of said lot to a trustee to secure the payment of a principal note for $1,250 and two interest notes for $43.75 each, payable to the said Patrick F. Grace. The debt secured was not paid, the deed of trust was duly foreclosed, and the said Grace became the purchaser of the premises at the price of $1,531.75, received the trustee's deed therefor, and thereupon instituted this suit, averring that the land cannot be partitioned in kind and asking that it be sold and he be given one-half of the proceeds. The defendants are Augusta Lucy Dougherty Perry and her husband, James S. Dougherty, the grantor in the deed of trust, William Lyons, who held a second mortgage on the premises executed by the said James S. Dougherty, which also covered other land, and Charles F. Loker, the grandnephew of the testator. Of these only Mr. and Mrs. Perry answered, their answer being in effect a general denial of the material allegations of the petition, with a specific averment that "plaintiff is only entitled to a life estate in an undivided one-half interest in said real estate." On the trial the defendant, inter alia, offered in evidence the deed of trust and trustee's deed aforesaid, and at the close of the case the court excluded these deeds and entered judgment for the defendants, thereby holding that the plaintiff acquired no interest whatever by virtue of these deeds. To determine whether the trial court was right or not in so holding it becomes necessary to ascertain in the first place what interest in and power over the land in question was acquired by the said James S. Dougherty by the will of his father; a question to be determined by a proper construction of the residuary clause of his will.

1. The controlling rule in construing wills in this state, to which all technical rules of construction must give way, is to give effect to the true intent and meaning of the testator as the same may be gathered from the whole instrument, if not violative of some established rule of law; and in arriving at that intention the relation of the testator to the beneficiaries named in the will and the circumstances surrounding him at the time of its execution are to be taken into consideration, and the will read as near as may be from his standpoint, giving effect, if possible, to every clause and portion of it, and to this end, if need be, words may be supplied and omitted, and sentences transposed. Rev. St. 1899, § 4650; Brooks v. Brooks, 187 Mo. 476, 86 S. W. 158; Dozier v. Dozier, 183 Mo. 137, 81 S. W. 890; Meiners v. Meiners, 179 Mo. 614, 78 S. W. 795; Simmons v. Cabanne, 177 Mo. 336, 76 S. W. 618; Underwood v. Cave, 176 Mo. 1, 75 S. W. 451; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786, and cases therein cited. The evidence in this and the cognate case submitted with it tends to prove that at the time of the execution of the will the testator, an "old gentleman," was possessed of "considerable property"; that his family consisted of himself, his wife, and two minor children, James S. and Augusta Lucy, aged, respectively, about eight and ten years. It is conceded, and we think it is evident on the face of the instrument, that it was the intention of the testator by the last clause to devise all the residue of his estate, real as well as personal and mixed. It is manifest on the face of the will that it was written inops consilii and probably by the testator himself, who by the same token was neither a lawyer nor a scholar. It is inartificially drawn, defective in orthography and grammar, and to its interpretation must be brought good common sense, rather than artificial or technical rules of construction, either grammatical or legal. Evidently a man of good sense, but of limited education, he was doubtless moved to its preparation by the usual motives that induce the execution of a last will and testament in view of approaching death; his leading purpose being to make provision for those who were dependent upon him, and upon whom his affections naturally centered. These were his wife and his two infant children. His main purpose as...